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A Politicized SCOTUS & Senator Menendez Corruption Trial · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
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Speaker 1: It was another transformational term at the Supreme Court, where
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Speaker 1: the Republican appointed supermajority left no doubt that its conservative
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Speaker 1: revolution is pushing ahead to attain its goals without much
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Speaker 1: regard for precedent. The Conservatives slashed the power of regulators,
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Speaker 1: rule that Donald Trump is absolutely immune from criminal prosecution
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Speaker 1: for official presidential acts, made it harder to challenge voting
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Speaker 1: maps as racially gerrymandered, and found that homeless people sleeping
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Speaker 1: on the streets can be jailed. In those decisions, as
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Speaker 1: well as seven others. The Court was divided down ideological
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Speaker 1: lines six to three, with the liberal justices in the minority.
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Speaker 1: Joining me is Anthony Michael Christ, a professor at the
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Speaker 1: Georgia State University College of Law. People are bemoaning how
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Speaker 1: the Supreme Court had has become so political, But you
1:03
Speaker 1: write that the Supreme Court always has been political and
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Speaker 1: that the Court has never been an apolitical arbiter of
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Speaker 1: the constitution. Tell us why so?
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Speaker 2: You know, the Supreme Court has two important features in
1:17
Speaker 2: terms of how justice think. I think the first one
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Speaker 2: is that you know they're members of society, and so
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Speaker 2: you know, society has kind of dominant main streame views
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Speaker 2: and those that are very much on the outside, and justices,
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Speaker 2: much like your average citizen, is going to internalize those views,
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Speaker 2: internalize those changing dynamics in society and current events and
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Speaker 2: all the like, and their jurisprudence is going to sometimes
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Speaker 2: be affected by that. But then the other thing that's
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Speaker 2: even more important in terms of the Supreme Court's jurisprudential
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Speaker 2: outcomes is the fact that it is the byproduct of
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Speaker 2: big political coalition that elected presidents and that elect majorities
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Speaker 2: in the Senate. That then creates this dynamic where you
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Speaker 2: get a president who appoints justice the Supreme Court who
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Speaker 2: also reflects their ideological commitments. And so generally speaking, because
2:13
Speaker 2: of these two different features of how justices get picked
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Speaker 2: and how they just operate as regular members of society, right,
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Speaker 2: they're not for medically sealed off from the rest of us.
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Speaker 2: You know, the courts tend to reflect majoritarian views. Certainly,
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Speaker 2: I think there's a case to be made that this court,
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Speaker 2: the Roberts Court, and as the Roberts Court is currently constituted.
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Speaker 2: A lot of people may say this, well, outside of
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Speaker 2: the kind of mainstream views of the average American today,
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Speaker 2: And I think there was an argument made for that,
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Speaker 2: for sure. But generally speaking, the Supreme Court just contrary
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Speaker 2: to what most of us have been taught in law
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Speaker 2: school and in college for years and years and years,
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Speaker 2: it's not a counter majoritory and institution. It has typically
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Speaker 2: reflected the majority view on major questions of law and politics.
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Speaker 1: Do you think that this is becoming more pronounced because
3:03
Speaker 1: the Court has moved so fast to overrule precedent and
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Speaker 1: to change the law.
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Speaker 2: Yeah, So I think maybe a good app comparison maybe
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Speaker 2: the Warren Court from the nineteen fifties and nineteen sixties
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Speaker 2: and the current Robbers Court as it existed we'll say
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Speaker 2: since the Trump administration, so around twenty sixteen, and certainly
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Speaker 2: there's similar dynamics in that both courts overturned a lot
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Speaker 2: of precedent. People generally don't see the Warren Court as
3:30
Speaker 2: being at a step with the average Americans view during
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Speaker 2: that period because the New Deal coalition was dominant and
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Speaker 2: they won outright majorities both in Congress and substantial majorities
3:42
Speaker 2: time and again in terms of sending a president to
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Speaker 2: the White app and even Republicans who were more conservative
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Speaker 2: than the average Democrat at the time tends to be
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Speaker 2: more liberal, and so the views of the average politicians
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Speaker 2: who was electable in that time period was very much
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Speaker 2: in sync with the appsview of the typical Supreme Court
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Speaker 2: justice at the time. Why I think people seem more
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Speaker 2: skeptical of this court is because unlike the War in Court,
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Speaker 2: for example, you know, Donald Trump when he was first elected,
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Speaker 2: never cured a popular vote majority, and I think, you know,
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Speaker 2: in terms of public opinion pulling really never cracked a
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Speaker 2: majority of Americans supporting his presidency. And at the same time,
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Speaker 2: there was a dynamic that occurred in the Senate where
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Speaker 2: Donald Trump's Supreme Court nominees, unlike every nominee in the
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Speaker 2: years past, was unable to secure a majority of Senators
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Speaker 2: to confirm the nomination that he put forward for the
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Speaker 2: Supreme Court, who also represented a majority of Americans, because
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Speaker 2: the Senate has become so malaportioned based on population. And
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Speaker 2: so I think part of the anxiety that you see,
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Speaker 2: particularly from the center, center, left and left of the
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Speaker 2: political spectrum here in the United States, that is a
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Speaker 2: byproduct of the feeling that the Supreme Court is representing
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Speaker 2: minoritarian on minoritarian on minoritarian interests and not in step
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Speaker 2: with kind of the general flow and trajectory of the
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Speaker 2: American body politics, as was the case perhaps in the
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Speaker 2: nineteen fifties and nineteen sixties. So there are similarities in
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Speaker 2: terms of the court reflecting winning coalitions to a certain extent,
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Speaker 2: both between the Warren Court and the Roberts Court. But
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Speaker 2: I think there are also very significant qualitated differences in
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Speaker 2: terms of where we are in the kind of a
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Speaker 2: longer term trajectory in American politics.
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Speaker 1: So let's talk about some of the cases. One of
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Speaker 1: the cases where it seemed to me that politics was
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Speaker 1: blatantly at play was the Idaho abortion case. There were
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Speaker 1: enough justices to place a stay on the district court
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Speaker 1: order so that Idaho could enforce its ban before the decision,
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Speaker 1: but then some of them must have had a change
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Speaker 1: of heart backed off, and in the dissent, Justice Alito
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Speaker 1: seemed to question why, and is the obvious answer the
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Speaker 1: upcoming alone.
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Speaker 2: I think the answer is it was absolutely the election,
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Speaker 2: and it was a feeling by a number of justices
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Speaker 2: on the Court that coming down with a ruling that
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Speaker 2: restricted abortion access further would be electorally damaging to conservatives
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Speaker 2: and Republicans across the country in a very important election cycle.
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Speaker 2: And I think one of the key dynamics here that
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Speaker 2: it's important to note is that this was of course
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Speaker 2: a dig right, so it was dismissed and providently granted,
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Speaker 2: which basically means that at least one of the members
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Speaker 2: who voted to hear the case in the first place
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Speaker 2: so voted to hear, sir, decided that no, they had
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Speaker 2: coal feet and they just didn't want to touch this,
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Speaker 2: And that to me suggests, you know, it was probably
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Speaker 2: not one of the liberals right who would get cold feet,
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Speaker 2: because they would not vote for curt unless they thought
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Speaker 2: they would certainly win, which with this court being as
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Speaker 2: conservative as it is, an anti abortion as it is,
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Speaker 2: you know, that wouldn't be a really safe bet. So
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Speaker 2: it's very like, if not absolutely certainty, that either Justice Barrett,
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Speaker 2: Chief Justice Roberts, or Justice Kavanaugh or in that group
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Speaker 2: who initially decided to hear this case and realize that
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Speaker 2: it was going to go in a way they didn't
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Speaker 2: particularly like, likely for political reasons, and they backed off.
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Speaker 2: And so I think the core disposition here at least
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Speaker 2: among the three more I would say more moderate conservatives.
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Speaker 2: I wouldn't call them moderates, but they're certainly less conservative
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Speaker 2: than say Justice Alito or Justice Thomas. But those three Kavanaugh, Roberts, Barrett,
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Speaker 2: I think hope that either they could pump this off
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Speaker 2: for another time and decide against the federal government during
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Speaker 2: a year that is not an election year, or they
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Speaker 2: could just sit back and hope Donald Trump wins the
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Speaker 2: presidency in November, wait for the Trump administration to reverse
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Speaker 2: course on this policy that bid an administration promulgated, and
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Speaker 2: then they won't have to touch it at all. So
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Speaker 2: this was really politics all the way down.
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Speaker 1: Now, the Eighth Amendment, we don't talk about it all
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Speaker 1: that much in the news, and the ban on cruel
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Speaker 1: and unusual punishment. The Supreme Court seems to often ignore
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Speaker 1: its protections and a lot of times the case is
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Speaker 1: involve criminal laws. But this term there was a case
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Speaker 1: involving homelessness. Tell us about that and what the court
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Speaker 1: did there.
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Speaker 2: So, in a case called City of Grant's Past, the
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Speaker 2: Supreme Court said that it does not violate the Eighth
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Speaker 2: Amendments ban on Cruel and Unusual punishment to essentially criminalize
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Speaker 2: people from camping in public spaces. And the hard part
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Speaker 2: here is that, you know, there's a couple of dynamics
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Speaker 2: that really make this situation agonizing, I think for people
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Speaker 2: who particularly are concerned about unhoused persons. And how you know,
8:52
Speaker 2: we treat homelessness in the United States, which is, you know,
8:54
Speaker 2: a lot of cities create policies and adopt public policies
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Speaker 2: that are not particularly friendly to affordable housing or density
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Speaker 2: which can make housing more available and cheaper and whatnot,
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Speaker 2: which could help ease some of these pressures. And you know,
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Speaker 2: cities also seem to be really resistant in many respects
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Speaker 2: to provide adequate services. And so you know, cities make
9:18
Speaker 2: these deliberate policies which make it harder for people to
9:22
Speaker 2: secure housing or to seek temporary shelter. But then at
9:26
Speaker 2: the same time, say you can't just sleep outside, you
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Speaker 2: can't put up a tent, or we're going to basically
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Speaker 2: criminalize your essential existence as an unhoused person. And so
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Speaker 2: in this respect, the policy choices of cities is really
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Speaker 2: a way to kind of crown people and push them
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Speaker 2: out of their jurisdiction and say you're someone else's problem now,
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Speaker 2: and that puts people in a really tough bind and
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Speaker 2: it's really hard to get out, and so you know,
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Speaker 2: the majority basically said, well, you know, this is not
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Speaker 2: a problem, like you essentially have choices here as a person,
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Speaker 2: and that's that there's no constitutional refuge or shield here
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Speaker 2: under the Eighth Amendment. Whereas I think that the centers
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Speaker 2: understood the bind that people face in these very tough situations.
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Speaker 2: I think what's telling in some respects, at least for
10:13
Speaker 2: me as a scholar of political history and particularly somebody
10:17
Speaker 2: who is focused on reconstruction. You know, so much of
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Speaker 2: this court is hell bent on originalist principles. And it's
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Speaker 2: kind of ironic because, you know, if you look back
10:27
Speaker 2: to the eighteen sixties when zoadical Republicans were running the
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Speaker 2: show and reconstruction was on their mind, and the Fourteenth
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Speaker 2: Amendment came into play, as did the forerunner to the
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Speaker 2: Fourteenth Amendment, the Civil Rights Act of eighteen sixty six.
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Speaker 2: These lost many respects for us to push back on
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Speaker 2: seven states which use vacancy walls, which were very similar
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Speaker 2: right to what is that play here in the City
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Speaker 2: of Grant Pass case, and basically track people either you know,
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Speaker 2: working on certain plantations or working in certain conditions kind
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Speaker 2: of fleeing the jurisdiction. And the huge part one of
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Speaker 2: the pushback against that was that people should have freedom
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Speaker 2: of movement. And you know, there were certainly people who
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Speaker 2: also thought that there was a requirement and an obligation
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Speaker 2: on government to provide some kind of basic social safety net.
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Speaker 2: And this is a particularly important point that reconstruction legislators
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Speaker 2: in South Carolina made in the late eighteen sixties and
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Speaker 2: or only eighteen seventies. But there's no originalism here, right,
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Speaker 2: There's kind of no originalism for folks who are poor.
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Speaker 2: And I think that's really kind of telling in some
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Speaker 2: respects about what this court is doing. It's not some
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Speaker 2: kind of neutral jurisprudential decision making. They make decisions on
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Speaker 2: an ad hoc basis, implementing whatever kind of constitutional tools
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Speaker 2: of interpretation they want as they see fit. There's really
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Speaker 2: no rhyme or reason to it other than they see
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Speaker 2: an issue and they craft a rule based on what
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Speaker 2: they viscerally and politically feel is the right outcome.
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Speaker 1: Coming up next on the Bloomberg Lawn Show, what happened
11:55
Speaker 1: to the Chief Justice being an institutionalist who believed in
12:00
Speaker 1: judges only calling balls and strikes. I'm June Grosso and
12:03
Speaker 1: you're listening to Bloomberg. The Supreme Court's fractured decision in
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Speaker 1: an important gun rights case. This term shows the justices
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Speaker 1: can't quite agree on how to use history and tradition
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Speaker 1: to analyze the constitutionality of firearm restrictions. The eight to
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Speaker 1: one ruling in the Rahemi case, which upheld a federal
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Speaker 1: law that bans people's subject to domestic violence restraining orders
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Speaker 1: from possessing a gun, elicited separate writings from seven of
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Speaker 1: the nine justices. Concurrences on both sides of the ideological
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Speaker 1: line show there's a rigorous debate going on over the
12:40
Speaker 1: legal theory of originalism, which the Court's conservative majority has embraced.
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Speaker 1: I've been talking to Anthony Michael Christ, a professor at
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Speaker 1: the Georgia State University College of Law. Do you think,
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Speaker 1: not only in this case, but in other cases, it's
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Speaker 1: sort of exposed the problems with originalism and riffs among
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Speaker 1: the conservatives about originalism especially. I think it showed in
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Speaker 1: the Raheemi case. I think, where you know, what is it?
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Speaker 1: Everyone has a different you know, not everyone, but there
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Speaker 1: are so many different opinions what is originalism?
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Speaker 2: I think the Rahemi case is really telling in some respects.
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Speaker 2: It's ironic to me that Justice Tummas, who wrote the
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Speaker 2: decision a couple of years ago in Bruin which was
13:23
Speaker 2: this right revolutionary Second Amendment case, basically was a loan
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Speaker 2: to center in Rahimi and said, well, you don't really
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Speaker 2: understand what I wrote. And so you know that that
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Speaker 2: kind of undercuts the whole point of originalism, right when
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Speaker 2: you have the author of an opinion that received majority
13:41
Speaker 2: vote by members of the United States Supreme Court saying
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Speaker 2: to other people in the Supreme Court you don't understand
13:47
Speaker 2: just a couple of years later what I actually meant
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Speaker 2: kind of ironically undercuts originalism and its alleged integrity as
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Speaker 2: a tool of interpretation. But I think the other thing
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Speaker 2: is that it has shown some crack in that people
14:01
Speaker 2: have understood that originalism has applied in a very strict
14:05
Speaker 2: and narrow sense, had unworkable and untenable outcome. And I think, frankly,
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Speaker 2: the fact that the justices all raandly rejected this idea
14:15
Speaker 2: that the Second Amendment should somehow protect domestic abusers and
14:20
Speaker 2: allow them to have weapons. You know, most people in
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Speaker 2: the United States, I think, would say they agree that
14:25
Speaker 2: that should not be the case. But if you applied
14:28
Speaker 2: just to Thomas's tests that he articulated a couple of
14:31
Speaker 2: years ago in a truly faithful way, the outcome would
14:34
Speaker 2: have been different. And so I think the Rashini case
14:38
Speaker 2: in some respects illustrates how there's this kind of roving
14:43
Speaker 2: attempt by a number of the members of the Court
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Speaker 2: to apply originalism where it works for them, and to
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Speaker 2: kind of push back a bit where it doesn't. And that, again,
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Speaker 2: I think truly is astonishing for a group of people
14:58
Speaker 2: who suggest that originalism is the one, only and true
15:02
Speaker 2: way to interpret the Constitution.
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Speaker 1: And you point out that there were cases where the
15:08
Speaker 1: Court sort of applied lenient statutory interpretations to benefit, for example,
15:15
Speaker 1: the January sixth defendants and white collar criminals.
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Speaker 2: Yeah, so to me, one of the interesting cases that
15:22
Speaker 2: the Supreme Court decided was a case dealing with January
15:26
Speaker 2: sixth defendants called Fisher. And in Fisher, there was again
15:31
Speaker 2: it can just catch all phrase that if you apply
15:34
Speaker 2: it a very strict form of textualism that somebody like
15:36
Speaker 2: Neil Gorsuch would often propose as being his preferred way
15:41
Speaker 2: of statutory interpretation, he makes sure have come out with
15:44
Speaker 2: a different outcome that didn't favor the January sixth defendants.
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Speaker 2: And so I think there are a lot of people,
15:50
Speaker 2: myself included, who may say that that decision of Fisher,
15:54
Speaker 2: as a matter of statutory interpretation, it might make sense,
15:56
Speaker 2: it might not. There might be some reasonable disagreement about
16:00
Speaker 2: what that decision should have looked like. But the decision itself,
16:04
Speaker 2: here's kind of the veil of legislative intent and legislative
16:09
Speaker 2: history in order to reach an outcome, and there are
16:13
Speaker 2: a number of justices who sign onto the opinion who
16:16
Speaker 2: generally reject that as an approach to interpreting a statute.
16:20
Speaker 2: And so I think one of the things that is
16:22
Speaker 2: something we should debate perhaps is whether or not these
16:26
Speaker 2: justices are being principled or whether they are again just
16:29
Speaker 2: kind of approaching these cases like lack a mole and
16:32
Speaker 2: hitting the kind of originalist opportunities where they come up
16:36
Speaker 2: and avoid them where that kind of approach doesn't really
16:39
Speaker 2: work for the outcomes that they truly desire. And so
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Speaker 2: I think the real questions that arose out of this
16:45
Speaker 2: term cases which really is ripe for debate about whether
16:48
Speaker 2: or not the justices are being true in terms of
16:52
Speaker 2: adhering to this kind of principle or this kind of
16:55
Speaker 2: theory or kind of pool of interpretation uniformally, no matter
16:59
Speaker 2: what the out I think they're often disingenuous in that respect.
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Speaker 1: So along that line, when Trump was contesting the election
17:05
Speaker 1: in twenty twenty, it seemed like the court didn't do
17:08
Speaker 1: him any favors, but this term they gave him everything
17:12
Speaker 1: he wanted. In more, you mentioned the January sixth case.
17:16
Speaker 1: There was that incredibly broad ruling on presidential immunity. They
17:20
Speaker 1: refused to allow Colorado officials to remove him from the ballot.
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Speaker 1: What happened? Why did they go so far to try
17:28
Speaker 1: to insulate Trump?
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Speaker 2: I think the big difference is that many people fell
17:33
Speaker 2: in twenty twenty that President Trump at the time had
17:39
Speaker 2: very weak political standing. There was a sense that there
17:43
Speaker 2: was going to be a total, perhaps landslide in favor
17:47
Speaker 2: of Joe Biden, and that of course didn't really happen.
17:49
Speaker 2: The election was much close, or I think most people anticipated,
17:53
Speaker 2: and that was both of the presidential election but also
17:56
Speaker 2: in terms of the Senate and the House of representative
17:58
Speaker 2: of results as well, but there was a sense that
18:01
Speaker 2: that was probably going to come to pass. And even
18:04
Speaker 2: when it didn't come to pass, at that point, Donald
18:06
Speaker 2: Trump had lost and so the wins in his sales
18:11
Speaker 2: were completely disflated, and so there really was no benefit
18:14
Speaker 2: to the Supreme Court to go out of their way
18:16
Speaker 2: to help Donald Trump. And if they did, that would
18:19
Speaker 2: also severely risk their own institutional capital. And that's not true. Now.
18:25
Speaker 2: Now you have a resurgent Trump. You have an income
18:28
Speaker 2: president who very well may beat Donald Trump, but who
18:31
Speaker 2: seems to be a little weaker than what most incumbents
18:34
Speaker 2: would want to be at this point in the presidential race.
18:37
Speaker 2: And they also don't want to risk the ire of
18:41
Speaker 2: Donald Trump should Donald Trump win the election in November,
18:44
Speaker 2: And so you know, that's all kind of in that mix.
18:48
Speaker 2: And then of course they're the Conservatives are looking up
18:50
Speaker 2: for their own interest I suspect, which is they would
18:53
Speaker 2: much rather have a seven to two, eight one nine
18:57
Speaker 2: zero conservative Supreme Court if they could have it, and
19:01
Speaker 2: not having a Republican win in November makes it less
19:06
Speaker 2: likely that there will be more Conservatives on the Court
19:09
Speaker 2: a few years from now than there are today. So
19:13
Speaker 2: there are a number of different issues that are at play,
19:15
Speaker 2: but I certainly think that some of the change in
19:18
Speaker 2: tone is political. And I also think though that some
19:22
Speaker 2: of the key issues, for example, the Presidential Community case,
19:25
Speaker 2: the number of members of this Court have truly believed
19:28
Speaker 2: in a doctrine that has empowered the executive. They believe
19:32
Speaker 2: in a unitary executive. They believe that the president should
19:35
Speaker 2: have the power to really wrestle control of administrative agencies
19:40
Speaker 2: and change policy as they see fit in things of
19:43
Speaker 2: that nature. And so to the extent too, that they
19:46
Speaker 2: could write an opinion that is reflective of their very
19:49
Speaker 2: long standing ideological commitments in consolidating executive power and do
19:55
Speaker 2: so in a way that could at least temporarily, if
19:58
Speaker 2: not long term, benefit Trump as perhaps the preferred presidential
20:03
Speaker 2: candidate they're going to do. So.
20:04
Speaker 1: You mentioned the administrative state basically, and the administrative state
20:08
Speaker 1: took hit after hit from the Court this term, and
20:12
Speaker 1: now with its decisions, it places power in the federal
20:17
Speaker 1: judiciary rather than in experts and agencies. So are we
20:21
Speaker 1: bound to see decisions based on the political views of
20:27
Speaker 1: federal judges more and more now that they don't have
20:31
Speaker 1: to worry about Chevron deference.
20:33
Speaker 2: I think it's possible that you could see that there
20:36
Speaker 2: is I think, to some extent, a somewhat limiting factor here,
20:40
Speaker 2: which is there will be times, perhaps where judges will
20:44
Speaker 2: be a little squeamish of wading into a particular policy
20:49
Speaker 2: and pushing back against it because they just don't have
20:53
Speaker 2: the kind of capacity in terms of technical expertise to
20:57
Speaker 2: do so. There will be other areas, I think this
20:59
Speaker 2: is particularly true in environmental policy perhaps, but there will
21:03
Speaker 2: be other areas where judges will feel a lot more
21:06
Speaker 2: comfortable stepping in and pushing back against administrative state. But
21:11
Speaker 2: when that does happen, and when judges do feel comfortable
21:14
Speaker 2: and more at ease to inquire into the rationality of
21:21
Speaker 2: a particular agency's policy, you know, certainly when you're asking
21:25
Speaker 2: something rational or you know something kind of passle sness test,
21:30
Speaker 2: you know, whatever, the test that eventually gets developed, because
21:33
Speaker 2: of course we have a rule from the local right case,
21:35
Speaker 2: but we don't really know how it's going to be
21:37
Speaker 2: fleshed out over time. I think there is a lot
21:40
Speaker 2: more room perhaps for mischief now where a judge's personal
21:44
Speaker 2: policy preferences will be easily substituted for whatever the inmistry
21:49
Speaker 2: of agency wants to do. So certainly that is a risk,
21:53
Speaker 2: but I do think that we'll have to wait and
21:55
Speaker 2: see for the next few years how this all shaked out.
21:58
Speaker 1: Over time, the Chief Justice John Roberts, he used to care,
22:02
Speaker 1: or he seemed to care, about the public's view of
22:05
Speaker 1: the Court, about the Court as an institution, claiming, you know,
22:08
Speaker 1: justices are not politicians, that they're just calling balls and strikes.
22:14
Speaker 1: What do you think happened this term that he seemed
22:17
Speaker 1: to throw away that concern.
22:20
Speaker 2: That's a good question. I think for a long time,
22:24
Speaker 2: Justice Roberts was dealing with a court that was really
22:27
Speaker 2: straddling an ideological lead avoid a bit where any case
22:31
Speaker 2: could come out five to four. Really truly, before Donald
22:36
Speaker 2: Trump took office, you know, the Supreme Court was still
22:39
Speaker 2: incredibly conservative. Even though it had a lot more ideological
22:44
Speaker 2: diversity on it, the court was certainly right of center.
22:47
Speaker 2: And you know, when Justice Kennedy left the bench a
22:50
Speaker 2: couple of years into Donald Trump's term, you know, the
22:52
Speaker 2: court went vastly right ward. But I think despite the
22:56
Speaker 2: Court's conservative dynamics before the Trump innistriction, John Roberts still
23:02
Speaker 2: had to cobble together coalitions, and I think that there
23:05
Speaker 2: was a sense that the American public was becoming increasingly liberal,
23:09
Speaker 2: especially on social issues and some of these kind of
23:12
Speaker 2: hot button issues that were very salient during the Aboma administration.
23:16
Speaker 2: I think there was a sense that he really had
23:19
Speaker 2: to keep together a coalition of five and so there
23:21
Speaker 2: might be some internal judicial politics at play there. It's
23:25
Speaker 2: really hard to say, but I think what we can
23:28
Speaker 2: for certain day is that he has seen, for whatever reason,
23:32
Speaker 2: the Court, you know, in his view, needs and can
23:34
Speaker 2: take a sharp turn. Right now, it's hard to understand exactly,
23:39
Speaker 2: I think without the perspective of more time to kind
23:42
Speaker 2: of grasp exactly what's happened there, but there is I
23:47
Speaker 2: think a noticeable shift in the Chief Justices perspective on
23:53
Speaker 2: the Court as an institution, in the institutional capital that
23:56
Speaker 2: it had. There are some risks to that. I think
23:59
Speaker 2: that opens up the Court to a lot more political
24:01
Speaker 2: tax you know, and so we'll have to see if
24:04
Speaker 2: that works out to his benefit in the longer term.
24:08
Speaker 1: So, as you point out, the conservatives have played a
24:11
Speaker 1: long game with the Supreme Court. So at this point,
24:16
Speaker 1: what is it that liberals or those in the center
24:19
Speaker 1: can do because the court is what the court is,
24:22
Speaker 1: and it's in power, and can anything be done.
24:26
Speaker 2: I think the lessons of liberals is that there needs
24:29
Speaker 2: to be a long game played in a way that
24:32
Speaker 2: is somewhat similar to what conservatives did in the late
24:36
Speaker 2: nineteen seventies and kind of hyper charge in the early
24:39
Speaker 2: nineteen eighties. Liberals don't have. I mean, there's certainly the
24:43
Speaker 2: American Constitution Society, which folks may be familiar with, which
24:46
Speaker 2: is in many respects kind of a liberal version of
24:49
Speaker 2: the Federalist Society, which many people are familiar with. But
24:52
Speaker 2: the Federal Society is a really powerful organization that began
24:57
Speaker 2: as a small conference at Yale in nineteen eighty two.
25:00
Speaker 2: A lot of work had to be put in by
25:02
Speaker 2: conservatives and libertarians into that organization to get it in
25:08
Speaker 2: a place where it's kind of at the center of power. Right.
25:10
Speaker 2: It took forty years to be at the true center
25:12
Speaker 2: of power, but it really was a very important institution
25:16
Speaker 2: in terms of developing lawyers into judges and putting people
25:20
Speaker 2: into places political power, and being a truly important center
25:25
Speaker 2: for networking and the spread of ideas that would later
25:29
Speaker 2: become by constitutional law. The liberals, I think, need to
25:33
Speaker 2: understand that that kind of organizational power, that kind of
25:38
Speaker 2: structural political force, is required in order to make the
25:43
Speaker 2: law turn left. So they're going to have to create
25:46
Speaker 2: those organizations or invest in the ones that already exist,
25:48
Speaker 2: and understand that that is a long term investment. At
25:53
Speaker 2: the same time, I think a lot of liberals have
25:55
Speaker 2: been kind of deluded for years by the war in
25:58
Speaker 2: court in particular, even that Court will save us right,
26:02
Speaker 2: that there's some kind of liberal value in the American
26:05
Speaker 2: constitutional order as embodies by the courts in the nineteen
26:09
Speaker 2: fifties and nineteen sixties, that is going to kind of
26:12
Speaker 2: live on in perpetuity. And that's just not the case.
26:16
Speaker 2: Constitutional law begins at the ballot box, and in particular,
26:20
Speaker 2: begins at the ballot box in presidential election years. And
26:24
Speaker 2: so I think for folks who look at the Court's
26:27
Speaker 2: conservatism and are kind of struck by it as being
26:31
Speaker 2: bad for the United States or reflecting values that they
26:35
Speaker 2: disagree with, then the response has to be to create
26:38
Speaker 2: organizations and the kind of structural political forces to push
26:42
Speaker 2: back against that and to invest in electoral politics. And
26:47
Speaker 2: that's really important. Courts don't operate in their kind of independent,
26:51
Speaker 2: isolated sphere. They are truly part of a broader political atmosphere.
26:55
Speaker 1: Thanks so much for being on the show and sharing
26:57
Speaker 1: your insights about this term, Professor Anthony Michael Christ of
27:02
Speaker 1: the Georgia State University College of Law. Coming up next,
27:06
Speaker 1: the corruption trial of Senator Bob Menendez is coming to
27:09
Speaker 1: a close. This is Bloomberg. In eight weeks of trial,
27:13
Speaker 1: the government has presented a sprawling case against Democratic Senator
27:17
Speaker 1: Bob Menendez, with testimony from a cooperating witness and more
27:21
Speaker 1: than a thousand pieces of evidence, including thirteen goal bars,
27:26
Speaker 1: five hundred thousand dollars in cash, and a secret FBI videotape.
27:31
Speaker 1: Federal prosecutors say Menendez put his power up for sale,
27:35
Speaker 1: pursuing bribes for years while promising to use his power
27:39
Speaker 1: to help those who paid him, in a clear pattern
27:42
Speaker 1: of corruption. The defense says prosecutors have not come close
27:46
Speaker 1: to meeting their burden of showing the gold or cash
27:49
Speaker 1: was given as a bribe. The seventy year old senator
27:52
Speaker 1: is accused of bribery, extortion, fraud, conspiracy, obstruction of justice,
27:57
Speaker 1: and acting as a foreign agent of Egypt and he
28:00
Speaker 1: faces decades in prison if convicted. Join me from the
28:04
Speaker 1: courthouse is Bloomberg Legal reporter David Voriancis, who's been covering
28:08
Speaker 1: the trial. David tell us about the prosecution's theory of
28:11
Speaker 1: the case.
28:12
Speaker 3: The prosecution theory is that Senator Robert Menendez engaged in
28:17
Speaker 3: a five year bribery scheme with his wife, who was
28:22
Speaker 3: his girlfriend for much of the period, and with two
28:26
Speaker 3: New Jersey businessmen who paid him bribes in exchange or
28:31
Speaker 3: official actions. They also say that Menendez acted as an
28:37
Speaker 3: agent of the nation of Egypt, taking several actions or
28:42
Speaker 3: promising to take several official actions that would benefit that country.
28:46
Speaker 3: They say that Menendez also obstructed justice when his lawyers
28:51
Speaker 3: tried to head off an indictment before it happened by
28:55
Speaker 3: lying to prosecutors about some of the underlying facts of
28:58
Speaker 3: the case. And they say that Menendez was quite sophisticated
29:04
Speaker 3: and cunning in the way that he acted over several years,
29:09
Speaker 3: never being too obvious or overt in his demands, but
29:14
Speaker 3: always taking money, particularly when his wife Nadine needed it.
29:19
Speaker 1: What was the strongest evidence the prosecution had against Menendez?
29:24
Speaker 2: In your view, I thought.
29:25
Speaker 3: They did an excellent job of building a circumstantial case
29:30
Speaker 3: that married the timing of various texts, emails, actions, meetings,
29:36
Speaker 3: photographs with what they say were bribes received by Menendez
29:43
Speaker 3: and official actions or the promise of official actions that
29:47
Speaker 3: he took. So they built three different long summary charts
29:52
Speaker 3: that FBI officials introduced to the jury, and that was
29:57
Speaker 3: their way of bringing in literally hundreds of texts and
30:01
Speaker 3: emails that showed over a five year period. This is
30:05
Speaker 3: what Menendez was thinking, This is what Nadine Arslanian later
30:09
Speaker 3: his wife Nadine Menendez was thinking. This is what Fred
30:14
Speaker 3: Bavies and Will Hannah, who our defendants were doing, and
30:18
Speaker 3: a whole long list of characters that are also involved
30:21
Speaker 3: in this case in some way.
30:23
Speaker 1: How much depends on the testimony of the witness who
30:27
Speaker 1: flipped Jose Rebey.
30:29
Speaker 3: It depends on who you ask. If prosecutors say that
30:33
Speaker 3: they built a strong, essentially bullet proof case that does
30:37
Speaker 3: not rely heavily on Uribe, who's a former insurance broker
30:43
Speaker 3: from New Jersey who treated guilty to Thriving Menendez and
30:47
Speaker 3: testified against them for several days. Prossecuers believed that they
30:51
Speaker 3: corroborated his account at every step of the way. On
30:55
Speaker 3: the other hand, Menendez his lawyers say that prosecutors are
30:59
Speaker 3: quite reliant on Uribe, who is a serial liar, who
31:04
Speaker 3: fabricated conversations to make Menendez look bad, and who can't
31:10
Speaker 3: be trusted, and because he can't be trusted, the government's
31:13
Speaker 3: case can't be trusted either.
31:15
Speaker 1: There were some heavy hitters that testified against Menendez, including
31:20
Speaker 1: the New Jersey Attorney General at the time and the
31:23
Speaker 1: top federal prosecutor in New Jersey.
31:26
Speaker 3: Right the former New Jersey Attorney General, Gerber Greywall, who
31:31
Speaker 3: is now the Enforcement director at the Securities in Exchange Commission,
31:35
Speaker 3: testified about a phone call and a meeting that he
31:39
Speaker 3: had with Menendez in twenty nineteen that prosecutors say, you
31:44
Speaker 3: know was part of the Bride Grey scheme. Jurors also
31:48
Speaker 3: heard from Philip Spellinger, who's the current US Attorney in
31:52
Speaker 3: New Jersey, which makes him the top law enforcement official
31:55
Speaker 3: in the state. And they also heard from an undersecretary
31:59
Speaker 3: former undersecret carry at the US Department of Agriculture about
32:04
Speaker 3: a similar phone call that he took from Menendez in
32:07
Speaker 3: which he said the senator asked him to drop an
32:13
Speaker 3: effort to get Egypt, to abandon a monopoly that one
32:18
Speaker 3: of the defendants had in Egypt, or meet in sections
32:22
Speaker 3: under the Holal standards.
32:24
Speaker 1: We've talked before about the physical evidence of those gold
32:29
Speaker 1: bars and the five hundred thousand dollars in cash, How
32:33
Speaker 1: does the defense explain.
32:35
Speaker 3: That The defense sent a great deal of time and
32:38
Speaker 3: inflammation trying to explain the gold bars and the cash.
32:43
Speaker 3: On the cash, they said that the prosecutors failed to
32:47
Speaker 3: show that there's a connection between that currency that was
32:51
Speaker 3: found in the Menendez house in Englewood Cliffs, New Jersey
32:54
Speaker 3: by the FBI, and any actions that he took as
32:58
Speaker 3: a senator. They also say that Menendez had a long
33:02
Speaker 3: standing habit inskilled in him by his Cuban refugee family,
33:08
Speaker 3: of taking out cash regularly from his bank account and
33:13
Speaker 3: essentially affording it, and that's how they can explain away
33:18
Speaker 3: a great deal of the cash. They also say that
33:20
Speaker 3: the gold bars were given to Nadine, his wife, without
33:25
Speaker 3: his knowledge, and that he had nothing to do with
33:28
Speaker 3: the gold bars, so they have a number of explanations.
33:33
Speaker 3: They also acknowledge that this is a difficult part of
33:37
Speaker 3: the case for the defense. They say that it is
33:40
Speaker 3: really the heart of the government's case and that if
33:43
Speaker 3: jurors will be patient and listen to their explanation, that
33:47
Speaker 3: the prosecution case just falls apart.
33:51
Speaker 1: David, I mean, is their main defense saying that the
33:54
Speaker 1: prosecution has improven things beyond a reasonable doubt or do
33:58
Speaker 1: they have an affirmative defense?
34:01
Speaker 3: They say there's an absence of evidence that they have
34:04
Speaker 3: not proven the case beyond a reasonable doubt. They also
34:08
Speaker 3: say prosecutors failed to show that Menendez either promised to
34:13
Speaker 3: take official action or actually took official action. And you know,
34:18
Speaker 3: they've attacked the way that the prosecutors put the case
34:21
Speaker 3: together using these massive summary charts, the texts and emails
34:27
Speaker 3: and phone calls and meetings, saying that they're asking the
34:31
Speaker 3: jury to go too far to draw negative inferences without
34:35
Speaker 3: having direct proof of any wrongdoings.
34:39
Speaker 1: So Menendez's wife is being tried separately, which is like
34:44
Speaker 1: a gift to Menandez in the case because it allows
34:46
Speaker 1: him to point at someone who's not in the courtroom
34:49
Speaker 1: as a possible culprit. Where does the wife fit in
34:53
Speaker 1: in the defense view?
34:54
Speaker 3: Maybe Menendez is not at the trial because she has
34:58
Speaker 3: breast cancer and is getting treatment for that. The prosecutors
35:02
Speaker 3: see her as a critical go between who facilitated conversations
35:08
Speaker 3: and bribes between Bob Menendez and the businessman who bribed him.
35:14
Speaker 3: The defense have used her as a fall person to
35:20
Speaker 3: blame for many of the actions that prosecutors say were criminal,
35:26
Speaker 3: and they essentially say that Nadine held critical information from
35:32
Speaker 3: Bob about the poor state of her finances and the
35:37
Speaker 3: gifts that she received from those businessmen.
35:40
Speaker 1: I thought it was interesting. At one point he summoned
35:43
Speaker 1: her with a bell, and the prosecution used that to
35:46
Speaker 1: show that he was the one in charge. Tell us
35:49
Speaker 1: about that bell ringing.
35:52
Speaker 2: Right.
35:53
Speaker 3: There was a critical meeting on the patio at ten
35:56
Speaker 3: pm on September evening behind the house of the Menendez
36:02
Speaker 3: is where the businessman who pleated guilty, Jose Uribe, met
36:07
Speaker 3: with Menendez, and prosecutors say and Uriba testify that he
36:13
Speaker 3: gave critical details to Menendez about what he should say
36:18
Speaker 3: to the new Jersey Attorney General at the time of
36:21
Speaker 3: gray Wall. The two men were sitting on the patio
36:25
Speaker 3: for an hour, according to the testimony, drinking Grand Marnier,
36:29
Speaker 3: smoking cigars, and Menendez needed to write down some information
36:36
Speaker 3: and this was a colorful part of the trial. According
36:39
Speaker 3: to Eurebe, Menendez picked up a bell and rang it
36:43
Speaker 3: to summon his wife, who came out with a piece
36:46
Speaker 3: of paper, and.
36:47
Speaker 1: The prosecution said the bell showed that he was the
36:50
Speaker 1: person in charge, not a puppet having his strings pulled
36:53
Speaker 1: by someone else. You know, we had talked before about
36:56
Speaker 1: whether Menendez would testify or not, and I thought he
37:00
Speaker 1: to try to counter some of the evidence and perhaps
37:03
Speaker 1: went over a juror or two get a hung jury.
37:06
Speaker 1: Did the defense mention at all why he didn't testify it?
37:10
Speaker 3: Menenda said outside the courthouse after he announced he was
37:14
Speaker 3: in testifying that he felt that the prosecutors had not
37:19
Speaker 3: proved their case, so he was essentially saying there was
37:22
Speaker 3: no need for his testimony because they failed to prove
37:28
Speaker 3: the unreasonable doubt that he engaged in all this criminal conduct.
37:32
Speaker 1: He's accused of bribery, extortion, fraud, conspiracy, obstruction of justice,
37:37
Speaker 1: and acting as a foreign agent of Egypt. If he
37:40
Speaker 1: falls on one, will he fall on all of them?
37:43
Speaker 1: Or are their unique circumstances for some of those charges.
37:47
Speaker 3: I think what is going to make this case difficult
37:51
Speaker 3: for the jury to judge is there are a number
37:54
Speaker 3: of separate plots alleged by the government. There's overlapping evidence
38:00
Speaker 3: and intersecting points and players. But this is going to
38:04
Speaker 3: be a difficult job for the jury to weigh all
38:08
Speaker 3: these different criminal charges against three defendants. I think it's
38:12
Speaker 3: going to take them a while to reach a verdict.
38:14
Speaker 1: There's also thirteen hundred.
38:16
Speaker 3: Exhibits, at least thirteen hundred. There's a lot of evidence
38:20
Speaker 3: to go through. The prosecutors took nearly six hours in
38:24
Speaker 3: their initial closing argument. Menendez's lawyer took at least five hours.
38:30
Speaker 3: There's a couple more closing arguments than the prosecutors get
38:33
Speaker 3: a rebuttal case again, and then there's a fairly complex
38:38
Speaker 3: set of legal instructions that the judge has to give
38:41
Speaker 3: to the jury. Now this is a jury that was
38:43
Speaker 3: told that the case would last six weeks, and now
38:47
Speaker 3: we're almost into our ninth week of the trial.
38:51
Speaker 1: Well, I know you will be there until the bitter end. David,
38:53
Speaker 1: thanks so much. That's Bloomberg Legal reporter David Voriacis. In
38:58
Speaker 1: other legal news today, Arcago's Capital Management founder Bill Huang
39:03
Speaker 1: was found guilty of criminal charges stemming from his firm's
39:07
Speaker 1: twenty twenty one collapse. Concluding a two month trial that
39:11
Speaker 1: captivated Wall Street, the jury delivered verdicts against Wang and
39:15
Speaker 1: his co defendant, former Archagos CFO Patrick Halligan. Both men
39:20
Speaker 1: were convicted of defrauding Arcago's counterparties like Credit Suisse and
39:24
Speaker 1: UBS by lying to them about the firm's trading activity
39:28
Speaker 1: and the level of risk in its portfolio. Wang was
39:31
Speaker 1: separately found guilty of manipulating several stocks, including the former ViacomCBS,
39:38
Speaker 1: though he was acquitted with regard to one stock. Both
39:42
Speaker 1: men were also convicted of participating in racketeering conspiracy. Each
39:47
Speaker 1: count theoretically carries a maximum sentence of twenty years in prison.
39:51
Speaker 1: The judge set in October twenty eighth sentencing for both men,
39:55
Speaker 1: and that's it for this edition of The Bloomberg Law Show.
39:58
Speaker 1: Remember you can always get the latest legal news on
40:01
Speaker 1: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
40:05
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40:10
Speaker 1: And remember to tune into The Bloomberg Law Show every
40:13
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40:17
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